Wollenberg v. Rose

Mr. Justice Wolvbrton

delivered the opinion.

1. It is maintained that, as plaintiff answered fully to the action at law, he was not in a position to interpose a cross bill in equity. But by answering over to the cross bill; and going to trial in the equitable forum, the defendant waived his demurrer, and the right to have the cause first tried at law.

2. The plaintiff’s remedy at law, it is manifest from the cross complaint, is not as practical and efficient to satisfy the ends of justice, or as adequate, as that in equity to afford him as full relief as he is entitled to; hence the cross bill is not objectionable because it may suggest a sufficient legal defense to the action. Both these propositions were determined in South Port. Land Co. v. Munger, 36 Or. 457, 470 ( 54 Pac. 815 , 60 Pac. 5 ). The cause of suit set forth in the cross complaint is purely equitable, and is peculiarly within the cognizance of equitable jurisdiction.

3. The objection to the eomplaint seems to be that the heirs of S. Marks & Co., were not made parties, it being asserted that they have acquired the legal title to the land agreed to be conveyed; but the administrator declares his readiness and ability to make a good and sufficient deed to convey the title upon payment of the demand, which is sufficient, after answer, *317 we tliink, to overcome the objection. The deed, we take it, should come from the heirs to carry a good title. The-administrator, as such, could not make it, or any deed to realty, without adequate authority from a competent court. A conveyance, however, from the lawful heirs of S. Marks & Co., would satisfy the demand, and, if the administrator furnishes it, there can be no cause for complaint.

4. The proofs are clear in support of the verbal agreement as set out in the complaint. Indeed, the defendant does not deny that there was an agreement between himself and S. Marks & Co., whereby he was to purchase the land for the consideration of $1,500; but he says, in effect, that it was never fully completed; that a bond for a deed was to have been executed by the vendors, but was never done. The fact remains, however, that the parties concerned have treated the agreement as actually in existence. Possession was delivered by S. Marks & Co. to the defendant, and he has held the same through his father from that day until this, under and by virtue of the agreement. The father has planted an orchard upon it, and otherwise improved it, and has received all the products thereof. In May following the date of the alleged agreement nearly the whole of the first payment stipulated for was made by the defendant Rose, and he has from time to time made other payments thereon, thus recognizing its existence and validity, extending down to as late a date as October 17, 1899. These facts are clearly shown, and the defendant’s admissions from time to time, while continuing in the possession, tend to the same purpose, and show a completed agreement, so far as was intended, until the payments should be completed and the deed executed. A reasonable time for the payment of the balance over and above the $500, the first payment agreed upon, has elapsed, and the whole of the purchase price has become due and payable. The conditions for the establishment and enforcement in equity of a verbal contract for the conveyance of land are present in this case, — that is, the contract in all of its terms has been clearly and satisfactorily defined and proven; and the defendant, having gone into *318 possession of the premises, and occupied as owner, and received the rents, issues, and profits, is not in a condition to repudiate it, even though entered into verbally. The contract is such a one as specific performance thereof could be enforced by the vendor: Cooper v. Thomason, 30 Or. 161 ( 45 Pac. 296 ). This proceeding, however, is more in the nature of a foreclosure of the defendant’s equitable interest in the premises, and is governed by the case of Security Sav. Co. v. Mackenzie, 33 Or. 209 ( 52 Pac. 1046 ), and it was so treated by the trial court.

5. The decree, however, requires that the defendant pay the amount found due on the verbal agreement within 90 days, or be foreclosed of his interest in the land. It should have gone further, and required of the plaintiff to cause to be executed and delivered to the defendant a good and sufficient deed to said premises, such as will convey the legal title contemporaneously with such payment, and, in case of default in that particular, that the cross bill be dismissed. There will accordingly be a modification of the decree of the trial court to meet this requirement. Modified.